JUDGMENT

This Civil Miscellaneous Appeal is directed against the judgment and decree of learned Additional District Judge, Hosur in A.S. No.31 of 2014 remitting the matter to the trial Court for fresh disposal after giving opportunity to the plaintiff to implead one Ramanna or his legal heirs if the said Ramanna is not alive and to dispose of the suit afresh in accordance with law.

2. Brief facts that are necessary for the disposal of this appeal are as follows:

The appellants are defendants 1 to 7 in the suit in O.S. No.99 of 2006 on the file of Sub Court, Hosur. The first respondent in this appeal is the plaintiff who filed a suit in O.S. No.99 of 2006 for partition of suit schedule properties into two equal shares and to allot one such share to him and for other consequential reliefs. The suit was dismissed by the trial Court after holding that there was an earlier partition under Ex.B18 dated 30.07.1968. The other reason for dismissing the suit is non-joinder of necessary party namely the persons who have purchased the property from the first defendant. The fact that the plaintiff and the first defendant are daughter and the son of Munuswamy through his second wife is admitted. It is also admitted in the plaint and in the written statement that the said Munuswamy, the father of plaintiff and first defendant had another son through the first wife, by name Ramanna. The said Ramanna was also a party to the earlier partition under Ex.B18 dated 30.07.1968. The document Ex.B18 dated 30.07.1968, is stated to be a partition list. The said document is also an unregistered document. It is the case of the appellants that the plaintiff was well aware of the partition that had taken place among the father and two sons. It is to be noted that the trial Court specifically referred to the admission of the plaintiff to the effect that there was no partition before 30.07.1968 or during the lifetime of plaintiff's father. The plaintiff has stated in her evidence that the partition was after the lifetime of her father. However, the trial Court held that there was a partition under Ex.B18 by relying upon a Will under Ex.B4. The first respondent as against the judgment and decree of the trial Court dismissing the suit mainly on the grounds that there was an earlier partition and that the suit is bad for non-joinder of necessary party, preferred an appeal in A.S. No.31 of 2014 on the file of Additional District Court, Hosur.

3. The lower appellate Court after considering the fact that the suit is for partition and the plaintiff has not even impleaded his step brother namely Thiru. Ramanna, came to a conclusion that the suit is liable to be dismissed on the ground of non-joinder of necessary party namely Thiru. Ramanna and permitted the plaintiff to implead either the said Ramanna if he is alive or his legal representatives and remitted the matter giving opportunity to both sides to adduce further evidence. As against the order of remand, the above civil miscellaneous appeal is preferred by the defendants 1 to 7.

4. This Court carefully considered the findings of the trial Court while dismissing the suit. It is unfortunate to notice that the trial Court found that the suit is bad for non-joinder of necessary parties. However, the finding is on the basis that somebody who purchased the property from the first appellant was not impleaded. Since the appellate Court found that Shri. Ramanna is a co- sharer at least in respect of the properties of father who got some properties under Ex.B18, the appellate Court was of the view that the suit for partition by the first respondent is not maintainable without impleading one of the heir of Munuswamy namely Shri. Ramanna. Since the legal position that there cannot be an effect decree in the absence of necessary parties in a partition suit is well settled, the appellate Court found that the co-sharer must be necessarily impleaded and that without impleading all the legal heirs, a suit for partition is not maint